Black Hole: The Injustice of Wrongful Incarceration Doesn’t End When the Prison Doors Open

By Jessica Pishko

Danny Brown was in prison for almost two decades for a rape and murder he didn’t commit, and he has evidence to prove it: a host of eyewitness accounts validating his alibi, a polygraph test he took, and passed, at the prosecution’s request, and DNA from the crime scene matching that of another man who is currently serving time for a factually similar rape and murder.

He was released from prison in 2001 at the age of 45.

Maurice Caldwell also served more than 20 years for a murder he didn’t commit. Fifteen years after the 1991 shooting in San Francisco for which he was convicted of second-degree murder and sentenced to life, another man confessed to the crime and a judge dismissed his case for lack of evidence.

As incredible as it may seem, many exonerees are not even afforded the same consideration that most parolees receive: a change of clothes, some “gate money,” and counseling or job training. Even worse, many exonerees enter a kind of cruel legal limbo, in which, their vacated sentences notwithstanding, they are denied any official recognition of the injustice they suffered.

Caldwell was transferred from the jail in San Bruno to San Francisco, where he finally walked out on the afternoon of March 28, 2011, wearing donated clothing and carrying an envelope with $37 in it. He wasn’t sure what to do with the cash or whether to take it out of the envelope. “It’d been 21 years. I’d never touched no green money,” he says. The officers told him he could go.

Brown and Caldwell are just two in a long and growing list of Americans who have been exonerated after they were wrongfully convicted and imprisoned for many years. The story has become a common one on nightly newscasts: families tearfully reunited with long-incarcerated relatives, many of whom have spent more of their lives behind prison bars than as free persons. The moment of release is usually cast as a bittersweet vindication, justice delayed but finally served. The reality is not that simple.

In the introduction to the 2005 book, Surviving Justice: America’s Wrongfully Convicted and Exonerated, author Dave Eggers and former UC Berkeley visiting scholar Lola Vollen observed that, “The inevitable questions addressed to exonerees—‘Are you angry? Are you bitter?’—are difficult for them to answer. Often asked on the very day they are released, the day the fortunes of the wrongfully convicted turn, they are joyful, optimistic, ready to begin their lives again. But this grace period is often short-lived as the realities of their post-prison quandary become clear.”

As incredible as it may seem, many exonerees are not even afforded the same consideration that most parolees receive: a change of clothes, some “gate money,” and counseling or job training. Even worse, many exonerees enter a kind of cruel legal limbo, in which, their vacated sentences notwithstanding, they are denied any official recognition of the injustice they suffered. “After all those years, you fight and get released,” says Caldwell. “But the people who release you and let you go don’t want to say sorry or anything.”

The sentiment is echoed in Surviving Justice. A joint project of Eggers’s publishing enterprise, McSweeney’s, and the Berkeley Graduate School of Journalism, the book is a Studs Terkel–like collection of oral histories. One of the subjects interviewed, Christopher Ochoa, served 12 years for a rape and murder he had no connection to. He told his interviewer, “Nobody, nobody, has come out in public and said, ‘We screwed up.’ Not the DA, not the cop, not anybody. Nobody’s even apologized to me.”

The district attorney for Lucas County, Ohio, where Danny Brown’s case was prosecuted, has said that, despite his overturned conviction, Brown is still a “suspect” in the criminal investigation as a possible accomplice. She also recently told The Toledo Blade that she has “no immediate plans to retry him.” Under the laws of Ohio, Brown is entitled to nearly $1 million in restitution, but under the same laws he is unable to collect a dime as long as he is officially under investigation for any role in the original murder.

Now 60, Brown lives in a Toledo homeless shelter, broke, consumed with his case and everything that went wrong. “You been in jail all these years, and once you get out, you expected to make it,” Brown says. After prison, he did hold down a job for several years at a glass factory, but lost it during a relapse into drug addiction and depression. He says, for him, getting out of prison was like going from one cage to another, larger one.

“Once you are convicted, it’s not some tiny thing. It’s like someone threw you in a black hole and you can’t get out of it.”

False imprisonment is a story as old as incarceration itself and American legal history is studded with many famous—or infamous—cases, from the Scottsboro Boys in the 1930s to more recent examples such as the near execution of Randall Dale Adams, who was exonerated after his story was told by Berkeley alum Errol Morris in the award-winning 1988 documentary The Thin Blue Line. In recent decades, however, the number of people released from prison because they were never guilty to begin with has grown dramatically, in part due to the rise of DNA evidence, but also because of the efforts of pro bono groups such as The Innocence Project, co-founded by attorneys Peter Neufeld and Boalt alum Barry Scheck. These groups sift through thousands of convictions to find innocent people whom they can provide with legal help.

Scheck characterizes the work as a movement, one that is changing the way we view law enforcement, the courts and the reliability of evidence. He told the website, Big Think, “We who work within the criminal justice system, where the life and liberty of people are at stake, have to have some humility. That’s really what these DNA exonerations are teaching us.”

Today, only 30 states and the District of Columbia offer any form of compensation for exonerees, and the amount varies from as little as $50 per day imprisoned in Iowa to as much as $80,000 per year served in Texas.

But while a dozen or so nonprofits around the country work on getting the falsely convicted out of prison, very few have the resources to help exonerees navigate the sometimes equally Kafkaesque system they’re released into. One of these is a project called After Innocence, founded by Cal history major (BA ’93) and Berkeley Law alumnus (’02) Jon Eldan. Eldan, 46, could be thought of as a roving, high-energy social worker with a J.D. A fit, clean-cut man who intensely pounds on his laptop in every spare moment, he first became interested in wrongful convictions while working as a commercial litigator at a law firm in San Francisco. He was inspired to work with the wrongly convicted by the 2005 documentary film, also called After Innocence, which profiled seven exonerees and their struggles to rebuild their lives. The film highlighted how few services are available to exonerees.

With the passage of the Affordable Care Act in 2010, Eldan saw an opportunity to help. He pored over the regulations and mastered the application process so that he could help his clients obtain whatever health care they were eligible for—whether through the health care exchange, a job, Medicaid, Medicare or local clinics—and then help them make good use of it. He says he frequently sits with the applicant on the phone to ensure that everything goes smoothly. The process of identity verification involving past addresses, for example, is usually more complicated for Eldan’s clients because they haven’t had a “home,” often for decades.

His ambitions are intensely practical. He wants to connect people to services they are legally entitled to but often miss out on, such as health care, retirement benefits, a clean criminal record, and perhaps most importantly, restitution.

Today, only 30 states and the District of Columbia offer any form of compensation for exonerees, and the amount varies from as little as $50 per day imprisoned in Iowa to as much as $80,000 per year served in Texas. Some states require DNA exonerations or a governor’s pardon before any payouts are granted.

In California, the state pays exonerees $140 per day of incarceration, but the person must be found “factually innocent” to qualify for payment, meaning that they have to legally prove that they did not commit the crime or do anything else to cause their arrest, such as running from the police. It’s the inverse of the usual criminal case, where defendants are afforded the presumption of innocence. In determining whether or not the state owes the wrongly convicted anything, the burden of proof is shifted to the exoneree to show that he did not commit the crime.

Eldan decries the broken system and advocates for legislation to change it, but he recognizes the slow and incremental pace of change. “We have a long way to go, not just in the 20 states that offer no compensation at all, but in improving the deeply flawed compensation schemes in the other states.” Ever the pragmatist, he looks for what he characterizes as “inexpensive, simple fixes” in the meantime, measures such as providing exonerees with “an official certificate of innocence, which would help them convince potential landlords and employers of the unique injustice they suffered.”

Most of his work is done over the phone with exonerees across the country, focusing primarily on access to social services and legal assistance. On occasion, he jumps in to help with special projects. For example, when Washington State passed a law to grant compensation to exonerees who applied within three years, Eldan tracked down those who qualified to make sure they knew about the deadline. He helped four exonerees apply in time.

“No matter how many reforms we make,” acknowledges Eldan, “we will always make mistakes. Given that reality, an important measure of our fairness and integrity is how hard we look for those mistakes, what we do when we find them, and how we treat those who paid a horrible price for those mistakes.”

Such accomplishments are modest, but with the process for helping exonerees so broken or nonexistent, sometimes the only thing separating them from getting sucked back into the black hole entirely is Eldan on the other end of the line.

Last year, Congress passed a revision to the tax code that makes the money exonerees receive for their wrongful conviction tax exempt. The law also allows those who paid taxes on compensation in the past to reclaim it, but only if they file a claim by this December. Eldan is leading an effort to notify every exoneree who received compensation of the rule and is offering free assistance with filing in time.

Recently, he also started a project with law students at Boalt Hall to conduct a complete records search for exonerees and ensure that their criminal records—and the commercial background checks that are drawn from them—are accurate. The project also seeks to offer documentation of the client’s innocence as well as letters of recommendation from prominent members of the community such as state legislators, judges, and officials in order to help exonerees secure housing and employment. “This is a critical part of exoneree re-entry: getting the public to understand what happened to them,” Eldan says.

It isn’t an easy thing to do. As Danny Brown, who has had ample time to consider what went wrong in his case, says, “[The public] has an infallible faith in the justice system. Even in the face of all of these guys getting out of prison, people want to believe in the system.”

Eldan knows that some level of error is baked into the criminal-justice enterprise. The list of leading contributors to wrongful convictions is a long one, from faulty forensics to race bias, overzealous prosecutors to overworked public defenders. Such issues can be identified and addressed, but given the volume of cases, even a small rate of error will result in a large number of wrongful convictions, and, so long as we have the death penalty, even wrongful executions. As novelist and attorney Scott Turow, an adviser to After Innocence, has noted, “Law can go no farther off the tracks.”

“No matter how many reforms we make,” acknowledges Eldan, “we will always make mistakes. Given that reality, an important measure of our fairness and integrity is how hard we look for those mistakes, what we do when we find them, and how we treat those who paid a horrible price for those mistakes.”

So far, After Innocence has helped some 388 exonerees, about one-fifth of the nearly 2,000 individuals in the National Registry of Exonerations, a database maintained at the University of Michigan of people exonerated in the United States since 1989. Other organizations have reached only a fraction of that number, notes Eldan, a hint of pride in his voice.

After Innocence, which has received support from individual donors and foundations, including the Reva and David Logan Foundation (which sponsors an annual investigative reporting symposium at the Berkeley Graduate School of Journalism), takes charitable contributions through its 501c3 fiscal sponsor, the Althea Foundation. Eldan tries to keep the operation as lean as possible. There is no office, nearly all the work is done by phone and Internet, and it has hardly any costs other than staffing. He worked as a full-time volunteer to get the project off the ground, and is now raising money to keep it going and expand the number of people he can reach.

Even those he does reach often continue to struggle.

Like Danny Brown, Maurice Caldwell has been unable to get compensation from the state because, despite the lack of evidence against him, he hasn’t been able to meet the required standard to show his innocence. The original eyewitness who testified against him is dead. Like Brown, he is also penniless and dependent on Social Security benefits. He still struggles with the physical effects of prison: While working in the kitchen he suffered back injuries for which he received inadequate health care. He had trouble with his teeth but had never been to a dentist on the outside before. Eldan helped. He filed for Social Security, set him up with health care, and arranged a dentist appointment.

To Caldwell, Eldan is a hero. He compares him to a sighted person helping the blind. And while no one from the system that put him behind bars has ever apologized to him, Caldwell says Eldan sat him down and said, “Man, I’m a part of the society, and I know what was done to you was wrong. I can’t rectify the wrong, but I can help you get established.”

This past summer, Danny Brown came to the Bay Area to participate in a restorative justice event with the Northern California Innocence Project. Joining ten other exonerees, he opened up about the pain he had experienced as a result of his ordeal. It meant a lot to him just to be able to talk, and he thanked Eldan for making the visit possible.

“Jon let me be a part of that. I didn’t have no money. They paid for me to come there. Jon picked me up. That was important to me. That’s important when you are going through something like a wrongful incarceration. It’s like being a prisoner
of war.” 

Jessica Pishko is a freelance journalist covering the criminal justice system. Her work has appeared in The Atlantic, The Guardian, and other publications.

From the Winter 2016 Reality Bites issue of California.
Image source: Detail of Illustration by Chris Gash
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Comments

Some reality is in order. How many of those cases have been found actually innocent, as opposed to some other inclusive definition of “exonerated”, which does not mean actually innocent? Reality matters. The innocents at risk discussion seems to always avoid the huge mountain: Since 1973, 400,000 actual innocents have been murdered by those known criminals we have allowed to harm, again - recidivist criminals. That is murdered, excluding rapes, other assaults, robberies and all other violent crimes, which are much larger in numbers than are those murdered. 70% of released criminals are re arrested for additional crimes, within 5 years of their release.
Sir, You have missed the plot. This is about the innocent and not the guilty. Don’t you get it! Sheesh!
In fact, it is not, which is why I asked the question, which was detailed.
Well, the article talks about the innocent from I have read. The wrongfully convicted for that fact. I see the article having nothing to do with the justified convicted. Just saying!
Mark: That is the problem, wrongfully convicted and exonerated, as a rule, is not about cases which are actually innocent. The terms “”innocent”, “exonerated” and “wrongly convicted” are very often used in the context of this and countless other articles and do not mean “actually innocent”. It’s, often, a deception, which is why I asked for clarification. For example: The Innocent Frauds: Standard Anti Death Penalty Strategy READ SECTIONS 3&4 FIRST http://prodpinnc.blogspot.com/2013/04/the-innocent-frauds-standard-anti-...
Mark: I sent this inquiry, at Pishko’s contact, at her site, here: http://www.jessicapishko.com/contact =========== How many with proof of actual innocents? RE: http://alumni.berkeley.edu/california-magazine/winter-2016-reality-bites... Dear Jessica: The terms “”innocent”, “exonerated” and “wrongly convicted” are very often used in the context of the referenced and countless other articles and do not mean “actually innocent”. I am seeking that exact clarification from your article. Of the 1927 “exonerations” since 1984, how many of those have confirmation of being “actually innocent”? For example: The Innocent Frauds: Standard Anti Death Penalty Strategy READ SECTIONS 3&4 FIRST http://prodpinnc.blogspot.com/2013/04/the-innocent-frauds-standard-anti-...
I get you view and points now. Sorry for my misinterpretation.
No problem. The problem is that articles like this do no clarify, on purpose. She has not answered my inquiry. No surprise.
The cases listed on the National Registry of Exoneration are actual-factual-innocent proven exonerations. As of today’s date-12/12/2016 there are a total of 1941 cases listed on the registry. Of the known 1941 cases, 626 of them are actually NO crime convictions. That is a lot of people that were falsely accused, convicted and incarcerated. The American Tragedy-wrongful convictions.
Lisa: That is untrue. As per NRE: “A person has been exonerated if he or she was convicted of a crime and later was either: (1) declared to be factually innocent by a government official or agency with the authority to make that declaration; or (2) relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action. ” Nothing in (2) requires any finding of actual, factual innocence. And even (1) has wiggle room. A government official may have the authority to declare someone factually innocent, even though there has been no any such official finding that such person is actually, factually innocent. All you have to do is look at this by Samuel Gross, the co founder of NRE: The 4.1% “Innocent” on Death Row: More Nonsense http://prodpinnc.blogspot.com/2015/04/the-41-innocent-on-death-row.html
Dudley, a question for you: Do you believe in the common law concept of the presumption of innocence? That is, do you believe that a person should be presumed innocent until proven guilty in a court of law?
Yes. Do you believe in the rational reality that a presumption of innocence is only a presumption and that the defendant is either actually guilty or actually innocent?
Yes. Do you believe in the rational reality that a presumption of innocence is only a presumption and that the defendant is either actually guilty or actually innocent?
Sure, but I believe that a person who is found “not guilty” should be afforded that presumption, whether they have been exonerated or simply acquitted, because that is the only way the justice system can continue to operate in good faith. You seem to be saying that once a person has been convicted, they can never again be innocent; they must be guilty of something. Furthermore, you seem to be fine with shifting the burden of proof to the accused, and not just to prove they are “not guilty” but that they are actually “factually innocent.” And I can see why you set that as the standard; because as a proponent of the death penalty, you’re loath to admit that innocent people are sometimes executed. Or so it seems to me.
PJ: I never indicated, thought nor suggested anything of the sort. Both actually guilty and actually innocent people are found guilt or not guilty in a court of law. Everyone knows it and no one denies it. If you are interested in a case you should investigate it. Don’t just presume someone is actually innocent because they are found not guilty in a court of law or that someone is actually guilty because they were found guilty beyond a reasonable doubt. Not guilty is a legal standard which mean there was not sufficient evidence to find the defendant guilty beyond a reasonable doubt. Countless actually guilty criminals are never convicted because they are not ever caught or because the prosecutor knows they cannot not reach the beyond a reasonable doubt standard, so there is no prosecution of that case. Regardless of the outcome of a case the suspect or the defandant is either actually guilty or actually innocent. We know that for a fact, no presumption necessary.
“Regardless of the outcome of a case the suspect or the defendant is either actually guilty or actually innocent.” We know that is the case, certainly. No argument. And we also know that determining actual guilt or innocence is not always easy and is prone to error. Let me ask you this, though Dudley: What exactly is your position with regard to exonerees? Reading through this thread, I can’t quite suss it out. Are you arguing that most exonerees are in fact guilty? Or that some of them are? If so, I wonder: Do you have data to show as much? This isn’t a hostile question. I’m trying to understand where you’re coming from.
PJ: That’s a rational, understandable question. It appears that the “exonerated” or “innocent” claims may be 70-83% false, going by proven actual innocent. If you look at both NRE and the Death Penalty Information Center they tell you on their sites that there is no need of any proof of actual innocence for them to call the once inmate “innocent” or “exonerated”, they simply have redefined both of those terms. Plain to see. Please review: The Innocent Frauds: Standard Anti Death Penalty Strategy READ SECTIONS 3&4 FIRST http(COLON)//prodpinnc.blogspot(DOT)com/2013/04/the-innocent-frauds-standard-anti-death.html The 4.1% “Innocent” on Death Row: More Nonsense http(COLON)//prodpinnc.blogspot(DOT)com/2015/04/the-41-innocent-on-death-row.html
Dudley: Thanks for answering. While I accept your point that the exonerated “innocent” may not actually be “innocent” in an objective, factual sense, the semantics can cut both ways; that is, they may, in fact, be innocent of the crime for which they were convicted and, in fact, they probably are, since the courts are by no means eager to overturn sentences. And I certainly don’t see any basis for the claim that 70 to 83 percent of exonerees are in fact guilty. One final thing: I found this study you linked to pretty compelling, but you point to it as an “example of how starkly bad academic studies can be.” http://www.pnas.org/content/111/20/7230.full.pdf As such, I think we’ll have to respectfully disagree. Thanks again for the polite response.
PJ: Part of a public policy debate should be honesty. That is why these folks should explain, in detail, what they are saying. They don’t. It is an intended deception. I have been part of this public debate for almost 20 years. I clarify. They obfuscate. That is a major difference. The best tool, supporting my position, is the legal passage of laws, within the states, that allows a new hearing based upon a post conviction claim of actual innocence. Texas has such a law. These deceptive folks claim 12 death row inmates “exonerated” in Texas. Only one of those 12 has asked for a hearing and, then, had a finding of actual innocence. That is an 83% error rate in the 12 case claim, to date. No other death row cases are pending. But, even in that one case, it was originally decoded that there could be no finding of actual innocence. Texas had to amend the law to fit this particular case. Instead of a finding of actual innocence, which is not possible in this case, they decided to go to a belief standard, based upon the lack of evidence of guilt. There is a very well known investigative maxim that condemns this amended law, which is “Absence of evidence is not evidence of absence.”, a rational, true, established investigative maxim, now discarded, allowing a declaration of actual innocence, when no such evidence exists.
PJ: Thank you, as well.

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